New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 563953 - NYC: 219616

FINDINGS OF FACT AND DECISION

Case Number: 219616

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: REDACTED

Hearing Requested by: Parent

Date of Hearing: 12/15/21 and 2/8/22

Record Close: April 7, 2022

Hearing Officer: Peter D. Hoffman

NAMES AND TITLES OF PERSONS WHO APPEARED December 15, 2021

(All present by video or telephone)

For the Student:

[REDACTED]Attorney

[REDACTED] Parent

For the Department of Education:

[REDACTED] Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED February 8, 2022

(All present by video or telephone)

For the Student:

[REDACTED] Attorney

[REDACTED] Attorney

[REDACTED] Parent

For the Department of Education:

[REDACTED] Attorney

[REDACTED] Coordinator

[REDACTED]Psychologist, CSE 9

WITNESSES:

[REDACTED]

[REDACTED]

[REDACTED]

INTRODUCTION

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). The hearing demand / complaint letter was filed by the parent on October 14, 2021, The hearing was held on December 15, 2021 and February 8, 2022. T:12. There 26 exhibits from the district, and 45 exhibits from the parent. Both parties submitted post hearing closing statements. Notably, the parent’s only witness was himself, and there was no witness from the private school. In addition, other than old opinions and settlement agreements, the parent failed to provide any information or documentary evidence on the private school in question.

The parents are demanding the following relief: tuition reimbursement for the [REDACTED] School in the amount of $74,750.00 for the 2021-2022 school year.

JURISDISCTION

• • A decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act, (IDEA), 20 U.S.C. § 1400 et seq., and its implementing regulations, 24 C.F.R. §300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § 200.

BACKGROUND / FINDINGS OF FACT

The student is a [REDACTED] boy. He has been diagnosed with the following: Unspecified Neurodevelopmental Disorder, Attention Deficit Hyperactivity Disorder- Combined presentation, and a Speech Sound Disorder. P-FF, p. 10. The neuropsychologist also noted that the student had been diagnosed with apraxia since he was five years only and further noted a diagnosis’ of a speech and language impairment, impairment in reading, impairment in written expression and impairment in mathematics. P-FF, p. 3.

The IEP describes the student as follows:

“[The student] is a creative, hardworking, and friendly boy. He is happy and excited to greet his peers and teachers each morning and logs on to class prepared and motivated to learn virtually. [Student] is very compassionate and warm in his demeanor, as well as a diligent worker. [Student] takes pride in all of his work, and consistently tries his best during classroom assignments and projects. He is very motivated by positive teacher feedback. [Student] commonly engages in conversations with teachers and peers, as he has a genuine interest in their hobbies, interests, and lives outside of the classroom environment. These characteristics enable him to be well-liked in the classroom and have many friends. He is motivated to expand his knowledge in all content areas, and eager to always learn more. [Student]’s struggles in school can be attributed to his difficulties with expressive and receptive language, phonological awareness, social cognition, and cognitive flexibility. [Student] requires the support provided in a small, structured class setting. [Student] is eager to learn and displays a willingness to expand his level of participation in class. At times, [Student] has a hard time absorbing information, making connections, and contributing to group discussions, due to his struggles with expressive and receptive language, along with higher order cognition. This is especially present when working with unfamiliar concepts. [Student] has difficulty processing and understanding incoming oral and written information, as well as communicating and producing ideas orally and in writing. When an assignment requires extended writing, [Student] benefits from the use of a computer, to ensure that he is able to complete the assignment to the best of his ability. He benefits from using the Google Read and Write program, to help him organize his writing, check his spelling, and expand his written responses independently. He has particular challenges with phonological awareness. When reading aloud, [Student] has difficulty decoding unfamiliar multisyllabic words. For example, when he is required to read a passage and answer questions independently, [Student] has difficulty understanding certain terms in the reading, making it difficult for him to comprehend the passage, as well as answer the questions independently. Similarly, when reading directions, [Student] may become confused about the expectation of the task due to difficulty fully decoding the directions. Throughout tests, quizzes, assignments, and projects, [Student] benefits from questions and directions being read aloud to ensure that he understands what is being asked, as well as what to do on the given assignment. [Student] does a great job advocating for himself when he is confused or needs help especially when the assignment requires reading and writing tasks. He requires extended time to process and respond to directions or questions, a preview of information and vocabulary, teacher modeling, as well as simplified and scaffolded language. To ensure the processing and internalization of information, [Student] benefits from repetition and practice, interactive lessons, slow rate of speech with short sentences, verbal cues, and structured strategies and tools to assist in his language skills. [Student] has many friends in the classroom and is active amongst his peers. He enjoys conversing with other students and his teachers and continues to work on building valuable relationships. However, he struggles with social cognition, specifically perspective taking. When engaging in conversations with his peers, [Student] has a difficult time expressing his thoughts clearly. He is genuinely interested in what his classmates are doing and wants to get to know them on a personal level. However, he has a tendency to misinterpret social situations due to his difficulties with reading social cues and body language. During these times, [Student] benefits from teacher facilitation and problem solving in order to navigate these social interactions successfully. When problem solving, [Student] is able to express why he was upset but is unable to understand his peers’ perspectives on how his actions make others feel. He benefits from role-playing and collaborative problem solving to be able to resolve social situations with his peers. [Student] also has a tendency to copy his friends’ behaviors throughout the class period. For example, if the teacher is asking for everyone to choose between three choices, [Student] will often make a selection or change his answer based on his classmates’ choices. In these moments, teachers have conversations with [Student] about the importance of thinking for himself and not copying his peers. [Student] has a difficult time understanding how copying his friends’ behaviors may result in them getting frustrated. Although it is never [Student]’s intention to make others feel upset or frustrated, he benefits from teacher support in order to continue to build positive relationships with his classmates. [Student] enjoys helping his teachers and peers throughout the day. However, [Student] often gives “teacher directions,” which can frustrate his classmates. During these times, he benefits from the verbal prompt to “mind his own activity.” [Student] has difficulty understanding when teachers do not need his assistance due to his difficulties with cognitive flexibility. He can get stuck, repetitive, and visibly agitated. During these times, teachers remind [Student] about the differences between a “student job” and a “teacher job.” [Student] benefits from perspective taking activities, teachers referring to his “student/teacher/parent job” Tree Map, teacher facilitated problem solving, and social thinking strategies.”

P-II, pp. 7-8.

Since 2012-2013 the student attends the private school in question. The information provided by the parent at the hearing, either by documentary or testimonial evidence, did not describe the program for the 2021-2022 school year. None of the prior decisions in this matter provide any information concerning the 2021-2022 school year.

The school district offering was a 12:1:1 class format at a community school. P-II, p. 10. Had the student attended the public school he was slated to have services for counseling, occupational therapy and speech and language therapy. P-II, p. 25. The goals were thorough, detailed, and measurable. P-II, pp. 11-23.

The district IEP coordinator from the district’s proposed school testified. She described the school as follows:

“We're a large community middle school. We have students in the 6th, 7th and 8th grade. We offer special education services that include, but aren't limited to, integrated coteaching, special class placement, and SETSS, which is the special education teacher support services. And we have related services that include speech, counseling, physical therapy, OT, adaptive phys ed, and we have social workers on staff that support the students as well.”

T:85. She also testified that the special class described in the IEP was available to the student on the first day of school. T:87., 90-91. And the IEP coordinator testified that the school could implement the IEP, T:93-94. Notwithstanding, the parents could not visit the public school due to COVID protocols, (T:91), and could not get a response from the IEP coordinator because she was out on maternity leave. T:100.

Another witness from the district also testified, a school psychologist who chaired a CSE Meeting for the student in 2020 for the 2020-2021 school year. T:109. This witnesses only experience with the student and his parents concerned the 2020-2021 school year, not the school year in question, 2021-2022. From solely a review of the documents this witness stated that the IEP for 2021-2022 school year was appropriate. T:118-119. This witness explained that the reason apraxia was not listed on the IEP was that the student had outgrown apraxia. T:131-132.

The father of the student also testified and described apraxia from a layman’s perspective. T:145. This witness provided a history of the student’s experience with the DOE and schools proffered from kindergarten forward. T:151. The father testified that at the private school the student had made progress. T:151. Much of the father’s testimony concerned years other than the year in question, the 2021-2022 school year. The father testified that the district had not met with or observed the student for the 2020-2021 or 2021-2022 IEP development. T:163-164.

STANDARD OF REVIEW

This is a tuition reimbursement matter. The Supreme Court established a three-part test to determine whether a district may be required to reimburse parents for their expenditures for private school: (1) was the IEP proposed by the school district inappropriate; and (2) was the private placement appropriate to the child’s needs and (3) whether equitable considerations favored reimbursement, Board of Educ. of the Hendrick Hudson Cent. School District v. Rowley, 458 U.S. 176, 179 (1982), Gagliardo v. Arlington Central School District, 489 F. 3d 105, 111 (2nd Cir. 2007), Burlington School Comm. v. Mass. Dept. of Ed., 471 US 359, 370, (1985), Florence County School District Four v. Carter, 510 U.S. 7, 12-16, 114 S. Ct. 361, 126 L. Ed. 2d 284 (1993).

• • In Jennifer D. As Parent of Travis D. v. New York City Department of Education, 550 F. Supp. 2d 420 (S.D.N.Y. 2008), the Court found that the parent carried her burden to establish that the unilateral placement program was specially designed to meet her son’s needs because it provided a sufficiently structured environment with specific services. If the two-part Burlington test is satisfied, the Court has discretion to consider relevant equitable factors. Jennifer D. at 429.
• • An IHO’s inquiry into matters brought pursuant to the IDEA involves two distinct elements. First, the hearing officer must determine whether the school system has complied with the procedures set forth in the IDEA. Rowley at 176. Second, the IHO must assess whether the IEP developed through those procedures was reasonably calculated to enable the child to receive educational benefits. Id.
• • A procedural violation can be denial of a FAPE if it: (1) impeded the child's right to a FAPE; (2) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a [FAPE]; or (3) caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii); A.D. v. New York City Dep't of Educ., 2013 U.S. Dist. LEXIS 38757 (S.D.N.Y. Mar. 19, 2013). Internal quotations omitted). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” Id.
• • The Supreme Court in Rowley did not explain what educational benefits means but this changed with its decision Endrew F. V. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988. (2017). The Court held that an IEP and placement must “be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Id. at 999. Endrew also clarified what deference meant in IDEA cases by requiring that the actions of the authorities be “cogent and responsive.” Id. at 1002.

DISCUSSION

POINT I

THE DISTRICT FAILED TO OFFER A FAPE TO THE STUDENT

• • The district has the burden of proof to show that their program will provide FAPE. The district did not meet its burden of proof as it concerns the public school offering a free and Appropriate Education. The burden of proof is on the district to show that its IEP and program are appropriate. New York Educ. Law. §4404(1)(c). The district did not even try to address the burden of proof to show that the IEP and program offered were appropriate for the student. Instead, the district’s witnesses testified only to their unsubstantiated position that the public school could implement the IEP. Therefore, the district failed to show that the IEP and / or program offered provided FAPE to the student Procedural violations warrant relief only if they "'(I) impeded the child's right to a [FAPE]; (II) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of [a FAPE] to the parents' child; or (III) caused a deprivation of educational benefits.'" Id. (alteration in original) (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)).
• • C.H. v. Goshen Cent. Sch. Dist., 2013 U.S. Dist. LEXIS 44991, *23, (SDNY, 2013). R.E. v. New York City Dep't. of Educ., 694 F. 3d 167, 192-193 (2d Cir. 2012) (footnote and citations omitted). Here the district failed to meet its burden because the district failed to put on any case whatsoever. Here the district failed to allow the parents to visit the school or meet with school personnel. T:97. The parent could not make contact with the public school despite reaching out several times. T:179. This is a procedural violation that did significantly impeded the parents’ right to participate in the decision-making process.

POINT II

THE PARENTS FAILED TO SHOW THAT THE PRIVATE SCHOOL WAS APPROPRIATE

There is a totality of the circumstances test that includes but is not limited to:

“No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”

Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). Also see Gagliardo v. Arlington Cent. Sch. Dist., (2d Cir. 2006), 489 F.3d 105, 112, 2007 U.S. App. LEXIS 12451, *18-19.

First parents are not held as strictly to the standard of placement in the least restrictive environment (LRE) as school districts and the fact that a school educates only students with disabilities is not a bar to reimbursement. W.S. and L.S. on behalf of C.S. v. Rye City School District, 454 F. Supp. 2d 134, 139 (S.D.N.Y., 2006), citing M.S. v. Bd. of Education of the City School District of Yonkers, 231 F. 3d 96, 105 (2d Cir., 2000). Parents seeking reimbursement bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate. M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 104 (2nd Cir. 2000). With limited exceptions, “the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” The issue is whether a public or private placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., at 364, (quoting Rowley, at 207). A private placement meets this standard if it is “likely to produce progress, not regression.” Walczak v. Florida Union Free School Dist., 142 F. 3d 119, 130, (2d Cir., 1998).

The parent has the burden to establish that its choice of unilateral placement is appropriate for the student. The parents are seeking tuition reimbursement from the district for placement at the School along with transportation. The parents have not met her burden in that private school with transportation is the appropriate placement for the student.

Here the parent failed to produce a witness from the private school and provided no documentary evidence that the private school was appropriate. Case No. 185237, Appeal No. 18-067.

POINT III

THE EQUITIES FAVOR THE PARENTS

The authority to grant reimbursement is discretionary and therefore when deciding on the extent of reimbursement to award parents, courts may take into account equitable factors. (Carter, 510 U.S. 7; Burlington at 369-70. Also see, G.B. v. Tuxedo Union Free Sch. Dist., 2010 U.S. Dist. LEXIS 124319 *61 (S.D.N.Y. Sept. 30, 2010); M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); Frank G., 459 F.3d at 363-364; Gagliardo, 489 F.3d at 112. Under IDEA, the reimbursement may be reduced or denied if parents fail to make their child available for evaluation by the district, fail to provide notice of the unilateral placement or if the actions taken by the parents are found to be unreasonable.

The parent cooperated with the district. They provided timely ten days’ notice by seeking mediation, P-QQ. The parent provided reports to the district. P-FF. The parent attended and vigorously participated in CSE Meetings. P-F, II, J, and Y... Accordingly, the equities favor the parent and full tuition reimbursement for the 2021-2022 and school year.

DECISION AND ORDER

It is hereby ordered that the parents’ application for tuition reimbursement is hereby denied.

• • Dated: April 7, 2022 Katonah NY ______________________________ By, Peter D. Hoffman, IHO

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

PARENT EXHIBTIS

Exhibit Date Pages

P-1 Letter from The [REDACTED]School 11/7/12 unspecified number of pages

P-2 Ten-day notice of intent letter 11/8/12 unspecified number of pages

P-3 Letter from Dr. [REDACTED] 1/14/13 unspecified number of pages

P-4 Countersigned stipulation 10/7/21 unspecified number of pages

P-5 Set of findings of fact and decision rendered by an IHO 7/14/13 unspecified number of pages

P-6 Prior written notice/notice of recommendation 2/16/21 unspecified number of pages

P-7 Stipulation of settlement 2/26/14 unspecified number of pages

P-8 Stipulation of settlement 12/9/14 unspecified number of pages

P-9 Letter and consent form 2/28/15 and

2/5/15 unspecified number of pages

P-10 IEP 7/30/15 unspecified number of pages

P-11 Neuropsychological evaluation 4/26/21 unspecified number of pages

P-12 Notice of intent 9/27/15 unspecified number of pages

P-13 Request for pendency 9/9/15 unspecified number of pages

P-14 Email from [REDACTED] 5/24/21 unspecified number of pages

P-15 Stipulation of settlement 5/18/16 unspecified number of pages

P-16 IEP 5/28/21 unspecified number of pages

P-17 IEP 7/14/16 unspecified number of pages

P-18 Email from [REDACTED] 5/31/21 unspecified number of pages

P-19 Notice of intent 8/9/16 unspecified number of pages

P-20 Email from [REDACTED] 6/4/21 unspecified number of pages

P-21 Request for pendency hearing 9/15/16 unspecified number of pages

P-22 Email from [REDACTED] 6/7/21 unspecified number of pages

P-23 Interim order on pendency rendered by an IHO 11/7/16 unspecified number of pages

P-24 Email from [REDACTED] 8/19/21 unspecified number of pages

P-25 Stipulation of settlement 5/30/17 unspecified number of pages

P-26 Email from [REDACTED] 8/22/21 unspecified number of pages

P-27 Notice of intent 8/23/17 unspecified number of pages

P-28 Email from [REDACTED] 8/23/21 unspecified number of pages

P-29 Stipulation of settlement 8/16/18 unspecified number of pages

P-30 Email from [REDACTED] 8/23/21 unspecified number of pages

P-31 Notice of intent 8/22/18 unspecified number of pages

P-32 Notice of intent 8/30/21 unspecified number of pages

P-33 Stipulation of settlement 3/12/19 unspecified number of pages

P-34 Spring report 5/2017 unspecified number of pages

P-35 Email from [REDACTED] 1/9/19 unspecified number of pages

P-36 Spring report 5/2019 unspecified number of pages

P-37 Email from [REDACTED] 3/13/19 unspecified number of pages

P-38 Reenrollment contract at the

[REDACTED]School for the 2021/2022 school year 9/13/21 unspecified number of pages

P-39 Ten-day notice of intent 8/20/19 unspecified number of pages

P-40 Copy of a signed credit card

Payment authorization form 2021 unspecified number of pages

P-41 Findings of fact and decision 10/2012 unspecified number of pages

P-42 IEP meeting notice 1/22/20 unspecified number of pages

P-43 Prior written notice 3/9/20 unspecified number of pages

P-44 IEP for [REDACTED] for the

2020/2021 school year, unidentified date unspecified number of pages

P-45 Notice of intent, 9/17/2, unspecified number of pages

DEPARTMENT OF EDUCATION EXHIBITS

Exhibit Date Pages

1 Neuropsychological examination 1/2017 34 pages

2 Social history update 3/13/19 two pages

3 Occupational therapy evaluation 2/8/19 five pages

4 Speech and language evaluation 3/19/19 seven pages

5 Consent for electronic mail 11/10/20 one page

6 The [REDACTED] school fall report 11/2020 23 pages

7 Report card for the fall 2020 period 11/2020 four pages

8 Notice of IEP meeting 11/4/20 three pages

9 IEP 12/15/20 26 pages

10 IEP attendance page 12/15/20 two pages

11 IEP meeting minutes 12/15/20 two pages

12 Prior written notice 2/11/21 six pages

13 School location letter 2/11/21 three pages

14 Change of address notification form 4/8/21 one page

15 Request for reevaluation 12/16/20 one page

16 Prior written notice revaluation 2/16/21 four pages

17 Neuropsychological evaluation 4/2021 17 pages

18 18 ELA progress report 3/19/21 two pages

19 Math progress report 3/19/21 two pages

20 The [REDACTED]School midyear report 2/2021 13 pages

21 Report card for spring 2021 4/2021 one page

22 Waiver of the IEP meeting 5/24/21 one page

23 Notice of IEP meeting 4/29/21 three pages

24 IEP revision 5/17/21 34 pages

25 Prior written notice 6/1/21 four pages

26 School location letter 6/1/21 three pages